Facts: The parties — parents of two children —divorced after a six-year marriage. As part of a temporary mediation agreement, each party agreed to participate in psychological therapy. Later, Wife subpoenaed all of Husband’s records from his psychologists. Husband moved to quash the subpoenas on the grounds that the information sought by Wife was not discoverable because it was protected by the psychologist-client privilege. The trial court overruled Husband’s motion and directed that his psychological records be produced subject to a protective order. Husband sought an extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure.

On Appeal: The Court modified the trial court’s ruling.

Husband argued the trial court erred in ordering the production of his psychological records because his records are protected from discovery by the psychologist-client privilege under Tennessee Code Annotated § 63-11-213. When a discovery dispute involves the application of a privilege, the court’s judgment is guided by the following three principles. First, Tennessee’s discovery rules favor discovery of all relevant, non-privileged information. Second, even though privileges do not facilitate the fact-finding process, they are designed to protect interests and relationships that are regarded as sufficiently important to justify limitations on discovery. Third, while statutory privileges should be fairly construed according to their plain meaning, they need not be broadly construed.

Tennessee law recognizes a privilege against compelled disclosure of confidential communications between a psychologist and client. Specifically, Tennessee Code Annotated § 63-11-213 provides that:

[T]he confidential relations and communications between licensed psychologist or, psychological examiner or, senior psychological examiner or certified psychological assistant and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.

As indicated by the language of the statute, the legislature chose to treat the confidential communications between a psychologist and client the same as those between an attorney and client.

Given the unique nature of child custody determinations, a parent’s assertion of the psychologist-client privilege to prevent access to mental health records presents a more difficult issue than those raised in other situations involving the privilege. In child custody cases, the paramount consideration is the best interest of the child. When a custody dispute arises between legal parents, courts must determine the child’s best interests in light of the comparative fitness of the parents, and must consider numerous factors including, where applicable, the mental and physical health of the parents.

In light of the foregoing, the Court ruled:

Although the best interests of the children remain the focus of the trial court’s concern when making custody determinations, the importance of the confidential relationship between a psychologist and client must not go unnoticed. Therefore, we conclude that the trial court erred to the extent that it ordered disclosure of Husband’s psychological records to Wife without properly considering the application of the psychologist-client privilege or whether Husband waived the privilege. We are mindful, however, of the concerns expressed by the trial court for the best interests of the children in light of the comparative fitness of the parents. Accordingly, on remand Husband’s psychological records shall be disclosed to the trial court for an in camera review for the purpose of conducting the comparative fitness analysis. Following this determination, the trial court shall enter an appropriate order protecting Husband’s privileged psychological records.

Alternatively, Wife argued that Husband affirmatively placed his mental health at issue, and thereby waived to the psychologist-client privilege, by seeking an award of sole custody. The Court quickly rejected this reasoning, stating:

If this were the law in Tennessee, there would be no psychologist-client privilege in child custody cases; a party seeking privileged mental health records could obtain them simply by alleging the mental instability of his or her adversary.

Accordingly, the Court vacated the trial court’s ruling and ordered Husband’s psychological records to be produced to the trial court for its private review.

K.O.’s comment: Note the opposite result was reached in Herman v. Herman when the Middle Section reversed the trial court’s order that psychological records be produced for in camera review.

Culbertson v. Culbertson (Tennessee Court of Appeals, Western Section, May 23, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.